CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Plaintiff, born October 5, 1967, applied for SSI benefits on January 8, 2013, alleging disability beginning June 1, 2008. Administrative Transcript ("AT") 76, 162, 223-230. Plaintiff alleged she was unable to work due to anxiety, scoliosis, dyslexia, posttraumatic stress disorder, mental health issues, disc denigration, chemical dependency, high blood pressure, depression, lack of serotonin in the brain, and asthma. AT 126, 145. In a decision dated April 18, 2014, the ALJ determined that plaintiff was not disabled.
AT 46-57.
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) improperly evaluated the medical opinion evidence in the record when determining plaintiff's residual functional capacity ("RFC"); (2) improperly considered his own observations of plaintiff at the hearing as a reason to find her testimony less than fully credible; and (3) erroneously concluded at step five that plaintiff could perform the representative occupations of small parts assembler, bottle packer, and sewing machine operator given her RFC.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
The record as a whole must be considered,
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record, and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons.
Here, plaintiff argues that the ALJ erred by assigning greater weight to the non-examining opinion of Dr. Dalton over the opinion of Dr. Kalman, a consultative examining psychiatrist. Plaintiff argues further that the ALJ erred by mischaracterizing the functional limitations opined by Dr. Dalton in order to make it appear as if that physician's opinion supported the limitations contained in the ALJ's RFC determination. Finally, plaintiff argues that the ALJ erred in rejecting the treating opinion of Nurse Practitioner Ngo. The court addresses each argument in turn.
Plaintiff first argues that the ALJ erred because he assigned "reduced weight" to the examining physician opinion of psychiatrist Dr. Kalman, and assigned "substantial weight" to the non-examining physician opinion of Dr. Dalton. Plaintiff contends that the ALJ was required to assign greater weight to Dr. Kalman's opinion given his status as an examining physician and failed to provide proper reasons for discounting Dr. Kalman's opinion.
Dr. Kalman conducted a psychiatric examination of plaintiff on March 15, 2013. AT 392-95. Based on that evaluation, which consisted entirely of an interview with plaintiff, Dr. Kalman diagnosed plaintiff with a bipolar-type schizoaffective disorder, an "R/O avoidant personality disorder," chronic back pain, degenerative disc disease of the lower back, and scoliosis. AT 395. Based on his findings and diagnosis, Dr. Kalman opined that plaintiff had the following mental limitations: "not able to interact with supervisors and co-workers"; "not able to deal with the public"; "able to understand, remember and carry out simple one and two-step job instructions"; "decreased ability to maintain attention, concentration and memory"; and "decreased ability to withstand the stress and pressures associated with daily work activities." AT 394-95. Dr. Kalman also assigned plaintiff a Global Assessment of Functioning score of 50, indicating serious mental impairment. AT 395. Finally, Dr. Kalman noted that plaintiff's condition was not expected to improve significantly in the next 12 months.
The ALJ discounted Dr. Kalman's opinion, assigning it "reduced" weight, because
AT 32 (citations to the administrative transcript omitted).
As an initial matter, plaintiff argues that the ALJ was required to provide clear and convincing reasons for discounting Dr. Kalman's opinion because the only other physician's opinion in the record regarding the impact of plaintiff's mental impairments that conflicted with Dr. Kalman's opinion was the one provided by Dr. Dalton, a non-examining physician who did not base his opinion on an independent evaluation of plaintiff. However, plaintiff provides no authority for her assertion that this higher standard should be applied, especially in light of the fact that Dr. Dalton provided a conflicting opinion regarding the impact of plaintiff's mental impairments.
First, the ALJ properly cited to the fact that Dr. Kalman's opinion was inconsistent with the generally unremarkable objective medical findings contained in plaintiff's mental status examination results.
Second, the ALJ also properly considered the fact that plaintiff's psychiatric medications were effective in controlling plaintiff's psychiatric symptoms as a reason to discount Dr. Kalman's opinion. A condition that can be controlled or corrected by medication is not disabling for purposes of determining eligibility for benefits under the Act.
Finally, the ALJ noted that the evidence of plaintiff's generally adequate daily living activities and social activities conflicted with Dr. Kalman's opinion. Plaintiff's own testimony at the hearing and statements throughout the record demonstrate that plaintiff used public transportation, lived with others, shopped in stores, attended group counseling sessions, and attended Delta College, where she took 11 units of classes, attended class five days per week, and studied with others. AT 78-80, 85, 87, 94-96, 282-83, 485. Similarly, plaintiff stated to one of her physicians in July of 2013 that she was still actively seeking employment, was redoing her resume, and had a desire to someday obtain work counseling women who are victims of physical and sexual abuse. AT 489. All of these daily activities generally conflicted with Dr. Kalman's opinion that plaintiff's mental impairments precluded her from having any social interaction with supervisors, coworkers, and the public. AT 394. The ALJ properly relied on such evidence to support his decision to accord reduced weight to Dr. Kalman's opinion.
Plaintiff argues that the ALJ erred in finding Dr. Dalton's non-examining opinion more persuasive than Dr. Kalman's opinion. However, the ALJ properly discounted Dr. Kalman's opinion for the reasons discussed above. Moreover, the objective medical evidence in the record that the ALJ cited to as substantial support for discounting Dr. Kalman's opinion also substantially supported Dr. Dalton's opinion that while plaintiff suffered from some limitations stemming from her mental impairments, they were not so severe as to be entirely disabling. AT 468-70, 477-79, 480, 482-83, 485-86, 492-94. The mere fact that Dr. Dalton was a non-examining physician did not preclude the ALJ from finding his opinion more persuasive than Dr. Kalman's properly discounted opinion in light of the fact that the objective medical evidence in the record generally supported Dr. Dalton's opinion.
Plaintiff also argues that the ALJ "changed" the opinion of Dr. Dalton to improperly find that Dr. Dalton's opinion supported the ALJ's RFC determination. In particular, plaintiff contends that Dr. Dalton did not opine that plaintiff could perform work involving limited social interaction as the ALJ characterized it in his decision, but actually opined that plaintiff "would be best suited to work with minimal social demands and little to no public contact." AT 32, 158. Plaintiff asserts that Dr. Dalton's opinion on this aspect of plaintiff's mental functioning as he had actually stated it in his opinion was more in line with Dr. Kalman's opinion that plaintiff was unable to interact at all with supervisors, coworkers, and the public. Plaintiff's argument is not well taken. While Dr. Dalton noted in his opinion that plaintiff would be "best suited" to work with minimal to no social interaction, he further clarified in the section of his opinion explaining the specific mental functional limitations he opined that plaintiff was capable of work involving "limited social or public interactions." AT 159. The ALJ paraphrased this opinion in his decision as "limited social interaction," and reasonably incorporated it into his RFC determination by finding that plaintiff "is limited to no more than occasional interaction with the public, coworkers, and supervisors." AT 50, 55.
Plaintiff contends further that the ALJ erred by giving "little weight" to Nurse Practitioner
Ngo's opinion that plaintiff should avoid prolonged sitting and standing on the basis that that opinion was not produced by an acceptable medical source. The court agrees with plaintiff that the ALJ erred in providing this reasoning for discounting Nurse Practitioner Ngo's opinion. The Commissioner's own regulations clearly include nurse practitioner as a proper "other medical source" to be used as evidence to show the severity of a claimant's impairments. 20 C.F.R. § 416.913(d)(1). Accordingly, an ALJ is not permitted to reject an opinion from such a medical source merely because it is not from an "acceptable medical source" as that term is defined in the applicable regulations. Nevertheless, while the ALJ erred in providing this rationale in support of his assessment of Nurse Practitioner Ngo's opinion, that error was harmless here because the ALJ also provided other, proper reasons for discounting that opinion that were supported by substantial evidence. Specifically, the ALJ reasoned that Nurse Practitioner Ngo's opinion:
AT 32 (citations to the administrative transcript omitted). The ALJ was required to provide reasons that were specific and "germane" to Nurse Practitioner Ngo's opinion in order to properly discount it.
First, the ALJ properly reasoned that Nurse Practitioner Ngo's opinion was inconsistent with the evidence in the record detailing the routine and conservative nature of the treatment plaintiff received for her back issues and asthma.
Second, the ALJ also properly determined that the inconsistency between the limitations contained in Nurse Practitioner Ngo's opinion and the relatively normal physical functioning plaintiff exhibited during Dr. Sharma's consultative examination undermined the probative value of Nurse Practitioner Ngo's opinion. Dr. Scharma's examination notes show that plaintiff exhibited negative straight leg raises, no muscle spasm in her back, and no evidence of clubbing, cyanosis, edema, or ulcerations in her extremities, which conflicted with Nurse Practitioner Ngo's opinion that plaintiff should avoid prolonged sitting and standing. AT 402-03. Dr. Scharma's other exam findings also indicated that Nurse Practitioner Ngo's opinion was too restrictive. AT 400-03. This, too, was a germane reason for discounting Nurse Practitioner Ngo's opinion that was supported by substantial evidence.
Finally, the ALJ properly considered the fact that plaintiff's pain medications were effective as a reason to discount Nurse Practitioner Ngo's opinion.
In short, the ALJ provided multiple valid reasons for discounting Nurse Practitioner Ngo's opinion that were germane to that source. Accordingly, the error the ALJ committed in discounting her opinion on the basis that she was not an acceptable medical source is harmless and does not warrant remand.
The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons.
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors.
Here, plaintiff contends that the ALJ erred in rendering his adverse credibility determination because he relied on his personal observations of plaintiff at the hearing as a rationale in support of that finding. Plaintiff argues that the ALJ's personal observations of plaintiff at the hearing do not provide the clear and convincing reasons required to support the ALJ's credibility conclusion.
Although plaintiff is correct in noting that the ALJ's observations of the claimant at the hearing may not form the sole basis for discrediting the claimant's testimony, such observations may be used in the overall credibility evaluation.
As an initial matter, plaintiff does not specifically contest that the ALJ erred in also providing any of these other reasons in support of his adverse credibility determination, instead focusing her argument regarding that determination solely on the fact that the ALJ used his own observations at the hearing as one of his supporting reasons. The court need not address an issue where the claimant "failed to argue [the] issue with any specificity in [his or her] briefing."
First, the ALJ properly considered the fact that plaintiff's testimony that she suffered from debilitating impairments conflicted with the more mild objective medical findings in the record. With regard to plaintiff's physical impairments, the ALJ noted that plaintiff exhibited largely normal signs of physical functioning during the consultative examination conducted on March 23, 2013. AT 52, 399-404. The ALJ also cited to the lack of serious findings regarding plaintiff's spine and respiratory functioning, and to the fact that plaintiff had received only conservative and routine treatment for her impairments.
Second, the ALJ also properly determined that plaintiff's multiple contradictory statements regarding the impact of her mental impairments undermined her credibility. As the ALJ noted, plaintiff testified at the hearing that she did not spend time with anyone, but had admitted earlier that she spent time with others on a weekly basis. AT 53, 85, 97, 283-84. Similarly, plaintiff complained of auditory hallucinations during her consultative examination on February 26, 2013, but specifically denied experiencing them on numerous other occasions during the period between August of 2012 and early 2014. AT 53, 326, 394, 479, 494. The ALJ was permitted to rely on these discrepancies in plaintiff's statements to support his adverse credibility determination.
Finally, the ALJ reasonably determined that the evidence of plaintiff's sporadic work history indicated that her continuing unemployment may be due to factors other than her medical impairments. A sporadic work history may show that a claimant has little propensity to work and may negatively affect a claimant's credibility regarding his or her ability to work.
In sum, the ALJ provided multiple clear and convincing reasons for discounting plaintiff's testimony that were supported by substantial evidence in the record. Therefore, plaintiff's contention that the ALJ erred in rendering his adverse credibility determination is without merit.
Finally, plaintiff argues that the ALJ erred by finding that plaintiff could perform the representative occupations of small parts assembler, bottle packer, and sewing machine operator given her RFC, all of which the Dictionary of Occupational Titles ("DOT") defines as Specific Vocational Preparation ("SVP") level 2 jobs, despite finding that plaintiff was limited to simple, routine, and repetitive tasks. Plaintiff contends that such an RFC limitation necessarily limits plaintiff to only jobs requiring SVP level 1 tasks, and the ALJ erred by determining that plaintiff could perform jobs requiring an ability to perform SVP level 2 tasks. However, plaintiff's argument is not well taken because the ALJ explicitly defined in his statement of plaintiff's RFC limitations that her limitation to simple, routine, and repetitive tasks means that plaintiff can perform work at SVP levels 1 and 2. AT 50. Moreover, during the hearing, the ALJ specifically defined the limitation to simple, routine, and repetitive tasks in his hypotheticals to the vocational expert ("VE") as meaning the ability to perform work at SVP levels 1 and 2. AT 118-20. In response to the hypothetical that reflected all of the limitations contained in the ALJ's well-reasoned RFC determination, the VE testified that a person with such limitations—including the limitation to simple, routine, and repetitive tasks as the ALJ had defined it—could perform work as a small parts assembler, bottle packer, and sewing machine operator, and that each of those jobs were defined in the DOT as SVP level 2 jobs. AT 120-21. The ALJ properly relied on this testimony as substantial evidence at step five to determine that plaintiff's RFC allowed her to perform other jobs that exist in significant numbers in the national economy, specifically, the three occupations the VE provided in his testimony. AT 56-57, 120-21. Therefore, the ALJ did not err in rendering his step five determination.
For the reasons stated herein, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 15) is denied;
2. The Commissioner's cross-motion for summary judgment (ECF No. 20) is granted; and
3. Judgment is entered for the Commissioner.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.